Opinion
6:19-cv-00259-JE
01-28-2021
ANTHONY BENJAMIN, Petitioner, v. BRANDON KELLY, Respondent.
Megan E. McVicar Hoevet Olson Howes, Attorney for Petitioner Ellen F. Rosenblum, Attorney General James M. Aaron, Assistant Attorney General Department of Justice Attorneys for Respondent
Megan E. McVicar Hoevet Olson Howes, Attorney for Petitioner
Ellen F. Rosenblum, Attorney General James M. Aaron, Assistant Attorney General Department of Justice Attorneys for Respondent
FINDINGS AND RECOMMENDATION
John Jelderks United States Magistrate Judge
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of several Multnomah County Circuit Court convictions from 2013. For the reasons that follow, the Second Amended Petition for Writ of Habeas Corpus (#39) should be denied.
BACKGROUND
In 2011, the Multnomah County Grand Jury indicted Petitioner with a single count of Murder in the First Degree following the death of Robert Williams. On March 16, 2012, the Grand Jury returned a second indictment against Petitioner containing eight counts of Attempted Aggravated Murder, two counts of Conspiracy to Commit Aggravated Murder, two counts of Tampering with a Witness, and seven counts of Identity Theft. The second Indictment alleged that Petitioner: (1) attempted to solicit the murder of the State's witnesses regarding Williams' death; and (2) falsely used other inmates' identification information when accessing the telephone system at the Multnomah County Jail.
The Multnomah County Circuit Court consolidated the two cases for trial. The jury ultimately found Petitioner guilty of the lesser included offense of Manslaughter in the First Degree as to Williams' death, two counts of Tampering with a Witness, and three counts of Identity Theft. It acquitted Petitioner of the remainder of the charges, and the trial court sentenced him to consecutive sentences totaling 272 months in prison.
As will be developed later, the Grand Jury returned a third indictment charging Petitioner with tampering with another witness at the beginning of his jury trial. Petitioner waived his right to a jury trial as to the third Indictment and was convicted of Tampering with a Witness following a bench trial.
Petitioner took a direct appeal in which he consolidated all three cases. The Oregon Court of Appeals affirmed the trial court's decisions without issuing a written opinion, and the Oregon Supreme Court denied review on January 14, 2016. State v. Benjamin, 272 Or.App. 664, 358 P.3d 1008 (2015), rev. denied, 358 Or. 529, 367 P.3d 529 (2016).
On April 27, 2016, Petitioner filed for post-conviction relief (“PCR”) in Marion County. Although he initiated the case pro se, the Marion County Circuit Court appointed counsel to assist him. Appointed counsel reviewed and investigated the case before determining that the pro se PCR Petition not only failed to state a cognizable claim for relief, but that it could not be amended to do so. Respondent's Exhibit 110. Pursuant to ORS 138.590(5), counsel provided the PCR court with an Affidavit in which he detailed what he believed to be Petitioner's strongest claims, explained why those claims could not lead to relief, and concluded with the following:
ORS 138.590(5) provides that if an appointed PCR attorney determines that the PCR petition filed by a petitioner is defective and cannot be amended to state a ground for relief, “counsel shall . . . inform the petitioner and notify the circuit court of counsel's belief by filing an affidavit stating the belief and the reasons therefor. . . .”.
Petitioner's original petition lists eleven claims alleging ineffective assistance of trial counsel, including, but not limited to, failure to investigate, failure to object, and failure to impeach witnesses. Petitioner's original petition also lists four claims alleging ineffective assistance of appellate counsel. I have examined every potential avenue and/or theory which might lead to a claim of ineffective assistance of counsel; however, I have found that none of Petitioner's claims have legal or factual merit. Petitioner has been unable to show prejudice as a result of trial counsel's failures. Assuming arguendo that our office found meritorious claims on behalf of Petitioner, the evidence presented by the State is so overwhelming that the outcome of the case would not have been different.Id.
On this record, the State moved to dismiss the action for failure to state a claim. Petitioner asked the PCR court not to dismiss his case and, instead, appoint a different attorney who would more thoroughly investigate the issues in his case. Respondent's Exhibit 111, pp. 4-5. On April 17, 2017, the PCR court held a hearing wherein it explained to Petitioner that: (1) state law required supporting documentation in order to state a claim; and (2) although Petitioner claimed to have such documentation, he had never submitted it leaving the PCR court's hands tied. The PCR judge indicated that based on the current record, he was inclined to grant the State's Motion to Dismiss but would reserve ruling and hold the case open to allow Petitioner one final opportunity to submit his documentation. Respondent's Exhibit 116.
Petitioner did not timely respond with any supporting documentation. As a result, on July 3, 2017, the PCR judge issued an Order in which he explained, “At the conclusion of the [April 17] hearing, the Court allowed Petitioner an additional 30 days to provide further written materials. No. further materials were received.” Respondent's Exhibit 117. As a result, it denied Petitioner's pending Motion for Substitute Counsel and granted the State's Motion to Dismiss while adopting the State's arguments that Petitioner failed to: (1) state a claim as required by ORCP 21 A(8); and (2) provide documentation to support his claims as required by ORS 138.580. Respondent's Exhibits 112, 113 & 118. The resulting PCR Judgment which was issued on August 8, 2017 dismissed the action with prejudice. Respondent's Exhibit 118. The nature of this dismissal was significant because, pursuant to ORS 138.525, dismissals for failure to state a PCR claim are not appealable. See Young v. Hill, 347 Or 165, 170-71, 218 P.3d 125 (2009) (dismissals pursuant to ORCP 21 A(8) deprive the Oregon Court of Appeals of jurisdiction over any appeal taken from such a dismissal).
Faced with an unappealable judgment, Petitioner did not proceed directly to federal court to avail himself of his habeas corpus remedy. Instead, he proceeded with a PCR appeal notwithstanding the nature of the PCR court's judgment. PCR counsel withdrew from the case, and the PCR court appointed new counsel to represent Petitioner for purposes of his appeal.
PCR appellate counsel, recognizing the procedural difficulties Petitioner faced, proceeded to file a Motion to Determine Jurisdiction wherein he argued that PCR counsel was not “suitable” as required by ORS 138.590(4), and it was akin to having no attorney at all. He pointed out that pursuant to ORS 138.525(4), a PCR court may not dismiss a case with prejudice if: (1) no hearing has been held; and (2) the PCR petitioner is unrepresented. He also argued that if a PCR court dismisses a case as meritless in the absence of a hearing and without appointing an attorney, the litigant may appeal so as to challenge the dismissal with prejudice notwithstanding ORS 138.525(3). See Dillard v. Premo, 362 Or. 41, 48, 403 P.3d 746 (2017). The Appellate Commissioner denied relief as follows:
Petitioner's reasoning is flawed: First, ORS 138.525(4) and Dillard apply only when the trial court fails to hold a hearing; here, the trial court held a hearing on both the petitioner's motion to appoint substitute counsel and the superintendent's motion to dismiss. Second, determining that petitioner's attorney rendered “unsuitable representation” would require this court to consider the appeal at least partially on its merits; that is, to decide whether the trial court erred in denying petitioner's motion to appoint substitute counsel, which, in turn, requires that this court have jurisdiction of the appeal. But, under ORS 138.525(3), this court does not have jurisdiction of the appeal. Third, having an attorney who arguably fails to render suitable representation as reflected in ORS 138.590(4) is not the same has having no attorney at all.
Therefore, the trial court's judgment in this case is not appealable. The court on its own motion dismisses the appeal on that ground.
Respondent's Exhibit 121, pp. 2-3 (footnote omitted).
Petitioner sought reconsideration of the Appellate Commissioner's Order Determining Appealability and Dismissing Appeal, but the Oregon Court of Appeals denied the Petition for Reconsideration. Respondent's Exhibit 123. Petitioner petitioned the Oregon Supreme Court for review of these issues, but the Oregon Supreme Court denied review. Respondent's Exhibits 124, 125.
On February 20, 2019, Petitioner filed a pro se Petition for Writ of Habeas Corpus raising eight grounds for relief. Once I was able to conduct a preliminary review of the record, I appointed counsel to represent Petitioner. Appointed counsel proceeded to file an Amended Petition on January 6, 2020 followed by a Second Amended Petition on June 5, 2020 which presents the following claims:
Ground One: Petitioner's trial attorneys rendered constitutionally ineffective assistance when they failed to:
(A) raise an alternative perpetrator defense;
(B) raise a justification defense;
(C) request a jury instruction to limit the prejudice resulting from the joint trial on the first and second Indictments;
(D) request jury instructions on the lesser included offenses of Manslaughter in the Second Degree with regard to the Murder charge associated with Williams' death;
(E) request that the trial court instruct the jury on the meaning of “circumstances manifesting extreme indifference to the value of human life” when instructing the jury on the elements of Manslaughter in the First Degree, and that the State was required to prove both that Petitioner acted recklessly and that his conduct was sufficient to prove the increased element of extreme indifference to the value of human life;
(F) object to the trial court's misleading response to a question of law brought forth by the jury during deliberations, and request that the trial court instruct the jury in accordance with the law on accomplice liability and aiding and abetting;
(G) argue that the two guilty verdicts returned on Counts 13 and 14 for witness tampering in case number 1203-31033 merged into a single conviction under ORS 161.067;
(H) raise a motion for judgment of acquittal on the Identity Theft counts where the prosecution failed to present sufficient evidence establishing that Petitioner “uttered” or “converted” to his own use the person al identification of another, a required element of Identity Theft.
Ground Two: The trial court violated Petitioner's right to due process when it denied his motion for judgment of acquittal on the charge of Tampering with a Witness (Hedrick) because the State presented insufficient evidence that Petitioner intended to induce Hedrick to offer false testimony or withhold testimony, an essential element of the crime of Tampering with a Witness.
Ground Three: To the extent the Court concludes that the deprivations listed above when viewed individually do not entitle Petitioner to relief, the cumulative effect rendered his trial unfair and requires relief from his convictions and sentences.
Respondent asks the Court to deny relief on the Second Amended Petition because Petitioner failed to file the Second Amended Petition within the statute of limitations, and only Ground Two of the Second Amended Petition relates back to the original Petition. He therefore asks the Court to deny Ground Two on its merits and to dismiss the remaining claims as untimely.
DISCUSSION
I. Timeliness
As applicable here, the Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that a state prisoner who wishes to challenge his judgment in federal court must file his habeas corpus petition within one year of the date the judgment became final at the conclusion of his direct appeals. 28 U.S.C. 2244(d)(1)(A). The period of direct review also includes the 90-day period within which a petitioner can file a petition for writ of certiorari with the United States Supreme Court, whether or not he actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). In addition, "[t]]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).
In this case, Petitioner's direct appeal proceedings became final when his 90-day period to petition the U.S. Supreme Court for certiorari expired (without any such filing) on April 13, 2016. He filed his PCR Petition 14 days later in Marion County, tolling the AEDPA's statute of limitations. On August 11, 2017, the PCR court issued its decision denying his case as meritless and rendering it unappealable. Given that the dismissal was not appealable under Oregon law, Respondent argues that Petitioner's subsequent state-court filings attempting to secure PCR relief through the appellate process were not “properly filed” within the meaning of 28 U.S.C. § 2244(d)(2) so as to continue to toll the AEDPA's one-year statute of limitations. Petitioner maintains that his PCR appellate filings did, in fact, toll the AEDPA's statute of limitations.
In Ramirez v. Yates, 571 F.3d 993 (9th Cir. 2009), the Ninth Circuit had occasion to address whether an appeal from a non-appealable judgment is “properly filed” so as to continue to toll the AEDPA's one-year statute of limitations. In Ramirez, a California Superior Court imposed a sentence of 50 years to life following Mr. Ramirez's conviction for a residential burglary. The severity of the sentence stemmed from the fact that Ramirez had three prior “strikes” under California law, thereby subjecting him to an enhanced sentence.
Ramirez filed a coram nobis petition in state court wherein he challenged one of his prior convictions that constituted a “strike” for purposes of his criminal history. The California Superior Court denied coram nobis relief, concluding that Ramirez had not proceeded with diligence where he waited almost 20 years to bring his collateral challenge. Id. at 999. Much like the Oregon Court of Appeals in this case, the California Court of Appeal determined that Ramirez's subsequent appeal of that decision was not appealable. Based upon this procedural history, the Ninth Circuit concluded that the coram nobis petition Ramirez filed in the Superior Court was “properly filed” so as to toll the AEDPA's statute of limitations until the Superior Court ruled because the diligence determination was a condition to obtaining relief, not a condition to filing. Id. (citing Artuz v. Bennett, 531 U.S. 4, 10 (2000)). However, it also concluded that “[b]ecause the denial of the writ [of coram nobis] was determined to be not appealable in this case, Ramirez's appeal was not properly filed and the pendency of the appeal did not toll the limitations period.” Id. (emphasis added).
The facts of Ramirez are materially indistinguishable from those in this case. Like Mr. Ramirez, Petitioner filed a collateral challenge to a state-court judgment. The initial filing (in this case, a PCR petition) was properly filed, thereby tolling the AEDPA's statute of limitations. However, the nature of the dismissal rendered the resulting judgment unappealable under state law. Instead of proceeding directly to federal court in a timely manner, over the course of the next 17 months Petitioner repeatedly and unsuccessfully argued to the Appellate Commissioner, the judges of the Oregon Court of Appeals, and the Oregon Supreme Court that ORS 138.525(3) did not bar his appeals. Oregon's appellate courts consistently determined that the PCR court's judgment was not appealable, a conclusion this Court is required to accept. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (state court interpretations of state law are binding on federal courts presiding over habeas corpus cases). Pursuant to Ramirez, where the PCR court's decision denying Petitioner collateral relief was unappealable, his PCR appeals were not properly filed so as to toll the AEDPA's statute of limitations.
Although Petitioner attempts to characterize California's collateral review process as “very unique” because it often requires a diligence determination for timeliness in the absence of a specific statute of limitations, the structure of California's collateral review process is irrelevant. The procedural postures of the two cases are identical for purposes of the question posed: where a state court issues an unappealable judgment (as determined by state law) stemming from a collateral challenge to a criminal conviction, does a subsequent filing in a state appellate court constitute a proper filing so as to toll the AEDPA's statute of limitations pursuant to 28 U.S.C. § 2244(d)(2)? The Ninth Circuit's decision in Ramirez clearly and directly resolves that it does not. This reading of Ramirez is consistent with that of the Honorable Marco A. Hernandez who similarly applied Ramirez in the context of a PCR judgment that, like Petitioner's, was unappealable because the litigant in that case failed to state a claim in his PCR proceeding. See Almanza-Garcia v. Amsberry, WL 1258303, pp. 2-3 (D. Or. March 12, 2020).
Petitioner also argues that even if he failed to properly file his PCR appeal so as to statutorily toll the statute of limitations, he is nevertheless entitled to equitable tolling during the pendency of his appellate proceedings. Equitable tolling is potentially available to toll the one-year statute of limitations applicable to 28 U.S.C. § 2254 habeas corpus cases. Holland v. Florida, 560 U.S. 631, 645 (2010). A litigant seeking to invoke equitable tolling must establish that: (1) he has been pursuing his rights diligently; and (2) some extraordinary circumstance prevented him from timely filing his petition. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). A petitioner who fails to file a timely petition due to his own lack of diligence is not entitled to equitable tolling. Tillema v. Long, 253 F.3d 494, 504 (9th Cir. 2001). Petitioner bears the burden of showing that this "extraordinary exclusion" should apply to him. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
According to Petitioner, equitable tolling is appropriate because the Oregon state courts gave him the impression that he had a valid pending appeal when, in fact, he did not. He points out that: (1) when the PCR court denied relief, PCR counsel moved to withdraw and sought to have substitute counsel appointed for purposes of appeal; (2) the PCR court appointed substitute counsel and ordered that a transcript of the PCR proceeding be produced; and (3) the Oregon Court of Appeals issued a notice that the transcript was settled and established a briefing schedule.
These matters of procedure, including the appointment of counsel for an indigent PCR litigant, in no way suggest a determination that Petitioner's appeal was properly filed. See ORS 138.590 (requiring appointment of counsel for indigent PCR litigants). Indeed, it is evident that the attorney appointed for purposes of Petitioner's PCR appeal was under no illusion as to the procedural posture of the case. This is best illustrated by counsel's initial filing of a “Motion to Determine Jurisdiction” wherein he acknowledged at the outset of his pleading that dismissal of a PCR petition as meritless under ORS 138.525 deprives the Oregon Court of Appeals of jurisdiction, but proceeded to argue that the statute should not apply to his case for reasons I already identified in the Background of this Findings and Recommendation. Respondent's Exhibit 119, pp. 1-2. The fact that Oregon's appellate courts allowed Petitioner to present arguments in an attempt to overcome the jurisdictional bar does not suggest that Oregon's state courts misled him into believing that his appeal was properly filed.
However, even assuming the Court were to conclude that the Oregon courts misled Petitioner into believing he had taken a procedurally-valid appeal, any resulting equitable tolling would only last, at most, until the Appellate Commissioner clearly stated on June 29, 2018 that the PCR court's Judgment was unappealable. This period of equitable tolling would not render the Second Amended Petition timely where: (1) 228 days elapsed between the Appellate Commissioner's decision and the signing of the initial, pro se Petition for Writ of Habeas Corpus in this case; and (2) an additional 301 untolled days elapsed between the filing of the State's Exhibits and the Second Amended Petition. For all of these reasons, with the exception of the Ground Two sufficiency of the evidence claim that the parties agree relates back to the original Petition, Petitioner's claims are untimely and should be dismissed.
Even if the first Amended Petition were still the operative pleading in this case, it also would be untimely as a total of 407 untolled days accrued prior to the filing of that pleading.
II. The Merits
A. Standard of Review
An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court's findings of fact are presumed correct, and Petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id. at 410. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).
When a state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal habeas court must conduct an independent review of the record to determine whether the state court clearly erred in its application of Supreme Court law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). In such an instance, although the federal court independently reviews the record, it still lends deference to the state court's ultimate decision and will only grant habeas relief if the state court's decision was objectively unreasonable. Harrington v. Richter, 562 U.S. 86, 98 (2011); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
B. Ground Two: Sufficiency of the Evidence
The initial Indictment against Petitioner alleged that on or about December 31, 2010, he intentionally caused the death of Robert Williams. On the night in question, Williams had given Lynette Harris five oxycontin tablets in exchange for a $20 rock of crack cocaine. Later that same night, Petitioner bought more drugs from Petitioner and Harris' stepson, Jaron Weeks. This transaction with Petitioner and Weeks led to a dispute. Harris was nearby and advised Weeks to walk away, but Williams followed. The verbal confrontation soon turned into a physical altercation. At some point, Williams, a very large man, pinned Weeks to the ground. Harris hit Williams, but it had no effect. At about this time, either Harris or Petitioner stabbed Williams in the cheek and then Harris, Weeks, and Petitioner left the scene. Williams suffered a lacerated artery that caused him to die of a stroke approximately two weeks later.
Harris and Weeks were the first to be arrested, and testified to the Grand Jury that Petitioner had stabbed Williams. Authorities arrested Petitioner for Williams' murder and placed him in the Multnomah County Jail. During this pretrial detention, Petitioner met another prisoner named Joshua Hedrick. Hedrick was serving a substantial sentence and had told others that he was attempting to glean information from other prisoners that he could share with the State so as to reduce his own sentence. In furtherance of this plan, Hedrick and Petitioner talked about how Hedrick could “get” Harris and Weeks. Petitioner indicated that it would be good for him if Harris and Weeks did not show up at trial and provided Hedrick with details about finding them and obtaining a gun to assist Hedrick in “handling business” to make sure they would not show up for trial. Trial Transcript, pp. 1364 & 1366.
Based upon his conversations with Petitioner, Hedrick contacted the prosecutor's office and informed it that Petitioner was actively attempting to prevent Harris and Weeks from testifying. As a result of this information, the State issued the second Indictment charging Petitioner with Attempted Aggravated Murder as to Harris and Weeks.
Prior to opening statements in the trial on the first and second Indictments, Petitioner and Hedrick saw each other in the courthouse, outside of the courtroom. Petitioner accused Hedrick of being a snitch during that encounter, later stated words to the effect of “I'm going to make sure you get yours, you motherfucking bitch, ” and allegedly told Hedrick that he would soon get stabbed and see Petitioner's dead cousin. Id. at 2315, 2365-66. A Sheriff's Deputy did not believe Hedrick was holding his own in the verbal confrontation and wrote Petitioner up for intimidating Hedrick. Id. at 2363, 2366, 2374.
As a result of this incident, the State issued the third Indictment against Petitioner accusing him of tampering with a witness. That Indictment led to a court trial following the jury trial and, at the end of the State's case, defense counsel moved for judgment of acquittal. She argued that the State failed to establish that Petitioner either induced or attempted to induce Hedrick to offer false testimony or withhold testimony altogether. Id. at 2377. The trial court denied the motion in somewhat summary fashion, but did find Petitioner guilty of the charge while making the following findings:
And I am finding that the State has met its burden on the elements required that Mr. Benjamin did act knowingly in attempting to instill fear and induce Mr. Hedrick in - to not testify, to modify his behavior. And he was aware that his actions were of that nature.
Mr. Hedrick's not the most credible person by any means, and I - I don't think that the word stabbed was used, but I do believe that there was enough language that - that what Mr. Hedrick took it to mean was that - that there would be - that he would be stuck or injured with an implement in some way in - and that it was reasonable to believe that that threat constituted the level of threat that was required to - to constitute an inducement.
So there was certainly - there was back and forth. There was - Mr. Hedrick was, you know, not the nicest individual himself and was taunting Mr. Benjamin, so that was definitely a deceit characteristic of this what we'll call a conversation, but within that there was also a fear and so I am finding that the State did meet its burden on the establishing the elements.Id. at 2401.
Petitioner argues that the trial court violated his right to due process of law when it denied his motion for judgment of acquittal on the charge of Tampering with a Witness because the State failed to produce sufficient evidence that he intended to induce Hedrick to offer false testimony or withhold testimony. When reviewing a habeas corpus claim based on insufficient evidence, "[t]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). When the record supports conflicting inferences, courts must presume the jury resolved the conflicts in favor of the prosecution. Id. at 326.
Because this issue occurs in the habeas corpus context which carries its own stringent standard of review, this court is required to apply a “double dose of deference” to the state court decision, a level of deference “that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011).
Petitioner argues that nothing he said or did during his encounter outside the courtroom with Hedrick suggested that he was attempting to influence or persuade Hedrick to do anything. He points out that none of his threats were made in any kind of contingent fashion, i.e., he did not tell Hedrick that the threat would go away if Hedrick refused to testify for the prosecution. While there was no clearly verbalized contingency, the record establishes that Petitioner attempted to frighten Hedrick outside the courtroom on the day he was slated to testify against Petitioner. “An attempt to induce may be carried out by instilling fear or attempting to instill fear in the witness.” State v. McBeth, 209 Or.App. 546, 556149 P.3d 212 (2006). This is what transpired in this case, and while it could be inferred that Petitioner was simply angry with Hedrick for misleading him and becoming a State's witness, it could also be inferred (as the trial judge did) that Petitioner sought to frighten Hedrick in an attempt to affect his forthcoming testimony. Upon an independent review of the record, and construing the evidence in the light most favorable to the State, the state court decisions denying relief on this claim were neither contrary to, nor unreasonable applications of, clearly established federal law.
III. Additional Considerations
As previously discussed, with the exception of his Ground Two claim pertaining to the sufficiency of the evidence, Petitioner presents the Court with numerous claims that are untimely. Despite this procedural deficiency, I wish to write about some of these untimely claims because they are substantial in nature, yet Oregon's state courts never addressed them because PCR counsel never raised them.
A necessary starting point to this discussion is PCR counsel's statement in his Affidavit that the evidence against Petitioner was so overwhelming that even if he could find a valid claim for pleading purposes, the outcome of the case would not have been different. This was certainly not the case. Putting aside the fact that the jury acquitted Petitioner of Attempted Aggravated Murder with respect to Harris and Weeks, the jury also found Petitioner guilty of the lesser included offense of Manslaughter in the First Degree as to Williams' killing. Based upon these facts, alone, it is difficult to conclude that the evidence against Petitioner was overwhelming.
More significantly, there was no clear-cut evidence of who actually stabbed Williams. There were only three possible perpetrators of that crime. It was not likely that Weeks committed the stabbing, as Williams had him pinned to the ground on his back at the time and Weeks was unable to move. Trial Transcript, pp. 794-800, 1119-20. Instead, the facts suggest that either Harris or Petitioner stabbed Williams. While Weeks and Harris testified that Petitioner stabbed Williams, not only were Weeks and Harris related, but Harris confessed on at least three different occasions that she stabbed Williams.
Hannah Miller, who was an acquaintance of Harris, testified that she was visiting Portia Crane's apartment on December 31 (the day Williams was stabbed) when Harris arrived and frantically confessed “over and over” to stabbing Williams. Id. at 1610-11, 1614-15. Kevin German was also present at Crane's apartment. He corroborated Miller's testimony and testified that Harris was “bragging basically that she had a fall guy for what she did.” Id. at 1854. Miller even called Crime Stoppers approximately two weeks after the murder to report that Harris had confessed to the crime. Id. at 1616-19.
A third witness, Hansen Richardson, testified that in January 2011, he was living with a friend, Leland Connell. He had been at Connell's home for a few months when Harris started staying there as well, about a week prior to her arrest. He learned that the police were looking for Harris in conjunction with a murder and, when he asked her about it, Harris “just kind of broke down. She started sobbing and crying. And she grabbed me . . . in a bear hug. And she was telling me, she said, you know, I'm going to the penitentiary for the rest of my life . . . I stabbed somebody and he's dead. It happened so fast.” Id. at 1885.
Not only does PCR counsel's statement about overwhelming evidence against Petitioner not ring true, but he relied on this belief to decline to litigate any claims on Petitioner's behalf. As a result, Oregon's state courts never adjudicated the vast majority of claims Petitioner now brings with the assistance of very able counsel. Based upon my thorough and independent review of the entire record, chief among the claims never heard on their merits is Petitioner's assertion that his defense attorneys failed to develop an alternative perpetrator defense where Harris had confessed to the crime, and Weeks was motivated to lie on her behalf.
I wish to commend both counsel for Petitioner and Respondent on their excellent briefing in this habeas case.
Trial counsel were surprisingly quick to concede that Harris' out-of-court statements confessing to the murder were inadmissible as substantive evidence in this case and could only be used for impeachment purposes. When the prosecution asked the court to give the jury a limiting instruction that the statements were offered only for impeachment purposes, the defense responded, “We don't see any problem with that limiting instruction. That's the whole purpose of the witnesses' testimony, was for impeachment purposes.” Trial Transcript, pp. 1828-29. However, courts do not automatically exclude evidence so highly relevant to a defendant's guilt, and Petitioner's attorneys should have argued more vigorously for the admission of Harris' repeated confessions for use as substantive evidence. See Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973) (exclusion of probative evidence that another perpetrator committed the crime violates due process); see also Green v. Georgia, 442 U.S. 95, 97 (1979) (whether evidence falls under state hearsay rule, its omission violates due process where it pertains to a critical issue in the case); Holmes v South Carolina, 547 U.S. 319, 324 (2006) (the Due Process Clause and the Compulsory Process Clause guarantee a criminal defendant the right to present a complete defense); see also Gable v. Williams, No. 3:07-CV-00413-AC, 2019 WL 1756468, at *35-37 (D. Or. Apr. 18, 2019) (Judge Acosta's analysis of confessions as they relate to the alternative perpetrator defense), appeal pending, No. 19-35436 (9th Cir.).
In Petitioner's case, however, even if his attorneys had persuaded the trial judge to admit Harris' confessions as substantive evidence, it would have had no effect on the result of his trial. Harris testified in front of the jury, and the defense presented the testimony that she had confessed to the murder. If the jury believed Harris was lying, then reasonable doubt would have existed as to Petitioner's guilt and the jury would have acquitted him. Thus, while Petitioner would have been better represented had his attorneys vigorously argued that Harris' out-of-court confessions were admissible as substantive evidence, any failure on their part did not alter the outcome of the trial therefore the claim lacks merit. See Strickland v. Washington, 466 U.S. 668, 686-96 (1984) (meritorious claim of ineffective assistance of counsel must not only show unreasonable performance, but also resulting prejudice).
My careful review of the record reveals that the jury, which was able to personally evaluate the witnesses' demeanor and testimony, was presented with all the pertinent evidence and chose to render a verdict that is supported by the evidence. I have thoroughly examined the entire record, including the Trial Transcript, and while his trial attorneys could have provided more robust representation, he suffered no ultimate prejudice from any shortcomings in that representation. Consequently, even if Petitioner had timely filed his Second Amended Petition so as to present the substance of all his claims to this Court, he would not be entitled to habeas corpus relief. Although Petitioner's trial was not ideal, the Constitution does not guarantee a perfect trial.
RECOMMENDATION
For the reasons identified above, the Second Amended Petition for Writ of Habeas Corpus (#39) should be denied and a judgment should be entered dismissing this case with prejudice. The Court should, however, issue a Certificate of Appealability limited to the question of whether the claims within Grounds One and Three of the Second Amended Petition are time-barred.
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 17 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.